McAfee Splits The Baby

Fani Willis Stays on The Trump Prosecution Only If Nathan Wade Leaves

In hindsight, this was probably the best ruling that could be made.

It was clear even before the evidentiary hearings that Fani Willis and Nathan Wade were more than friends and professional colleagues. It was equally clear that there was more than a little about their finances that was….”unorthodox” to put it most charitably.

It was clear that the Wade-Willis relationship contained at least the appearance of impropriety.

Therefore, there is a certain logic to Judge Scott McAfee’s order this morning ordering either Fani Willis or Nathan Wade to withdraw from the case against Donald Trump.

In a 23-page ruling issued Friday, Fulton County Superior Court Judge Scott McAfee wrote that the defendants “failed to meet their burden” in proving that Willis’s relationship with Wade — along with allegations that she was financially enriched through trips the two took together — was enough of a “conflict of interest” to merit her removal from the case. But the judge also found a “significant appearance of impropriety that infects the current structure of the prosecution team” and said either Willis and her office must fully leave the case or Wade must withdraw.

“As the case moves forward, reasonable members of the public could easily be left to wonder whether the financial exchanges have continued resulting in some form of benefit to the District Attorney, or even whether the romantic relationship has resumed,” McAfee wrote. “Put differently, an outsider could reasonably think that the District Attorney is not exercising her independent professional judgment totally free of any compromising influences. As long as Wade remains on the case, this unnecessary perception will persist.”

In the manner of King Solomon, Judge McAfee ordered Fani Willis and Nathan Wade to “split the baby”, so to speak.

Whether this was a good ruling or a bad one I will leave to those of more formal legal training. I will, however, note a few points articulated by Judge McAfee in his ruling:

There is an appearance of impropriety. Judge McAfee was explicit on this point: the relationship between Wade and Willis was wrong from a professional sand point.

However, the established record now highlights a significant appearance of impropriety that infects the current structure of the prosecution team - an appearance that must be removed through the State’s selection of one of two options. The Defendants’ motions are therefore granted in part.

McAfee thinks either Wade or Willis (or both) lied on the witness stand. As McAfee wrote in his opinion:

However, an odor of mendacity remains.

McAfee cannot prove they lied, but but was clearly unimpressed by either of them.

Fani Willis Comments To An Atlanta Church Were Improper. Just because Fani Willis has not been ejected from her own case, Judge McAfee was clear that her remarks to an Atlanta church congregation were beyond the pale.

However, the speech did not specifically mention any Defendant by name. Although not improvised or inadvertent, it also did not address the merits of the indicted offenses in an effort to move the trial itself to the court of public opinion. Nor did it disclose sensitive or confidential evidence yet to be revealed or admitted at trial. In addition, the case is too far removed from jury selection to establish a permanent taint of the jury pool. As best it can divine, under the sole direction of Williams, the Court cannot find that this speech crossed the line to the point where the Defendants have been denied the opportunity for a fundamentally fair trial, or that it requires the District Attorney’s disqualification.

But it was still legally improper. Providing this type of public comment creates dangerous waters for the District Attorney to wade further into. The time may well have arrived for an order preventing the State from mentioning the case in any public forum to prevent prejudicial pretrial publicity, but that is not the motion presently before the Court. The Defendants’ motions demanding disqualification and dismissal based on forensic misconduct are denied.

When a judge says a prosecutor’s actions were “legally improper”, that should be seen as a pretty stern rebuke. Willis was wrong, her conduct was wrong, and Judge McAfee ruled that they were wrong.

Ultimately, while McAfee did not find that defense counsel fully proved their case, he did rule that there was a case to be made. Should further evidence of misconduct arise, McAfee might not be so charitable and even-handed to the prosecution.

This is not a victory for Fani Willis. Given that she hired Nathan Wade to be a special prosecutor on the case, arguably because the scope of the case required additional legal talent and resources, she has been stripped of the resources brought to bear in the person of Nathan Wade.

Can Fani Willis move the case forward on her own? Obviously she can, although whether the Fulton County District Attorney’s Office can do so successfully is up in the air.

Perhaps most damaging for Willis is McAfee’s findings of improper conduct on her part. Willis might remain on the case, but so will McAfee. A second round of misconduct hearings might not go half as well for her.

The case against Donald Trump remains and will move forward, but there is no doubt that Fani Willis has undermined her own case, and it remains to be seen whether or not she can repair the damage she has done. In that regard, while the ruling might be a tactical victory for Fani Willis, in the end it is likely to prove a strategic win for the defense.